656 F.

2d 553

29 Fair Empl.Prac.Cas. 1329,

27 Empl. Prac. Dec. P 32,249,
7 Fed. R. Evid. Serv. 1263
Shirley NULF, Plaintiff-Appellant,
v.
INTERNATIONAL PAPER CO., a New York Corporation,
Defendant-Appellee.
No. 79-1008.

United States Court of Appeals,

Tenth Circuit.
Argued July 7, 1980.
Decided Jan. 5, 1981.

Grover Miskovsky of Miskovsky, Sullivan & Miskovsky, Oklahoma City,

Okl., for plaintiff-appellant.
Mary T. Matthies of Matthies & Associates, P.C., Tulsa, Okl., for
defendant-appellee.
Before SETH, Chief Judge, and McKAY and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.

Shirley Nulf brought a Title VII sex discrimination action under 42 U.S.C.
2000e, et seq., against defendant International Paper Company ("Company").
The United States District Court for the Western District of Oklahoma entered
judgment against Nulf on each of her claims and awarded attorney's fees and
costs to the Company. Nulf appeals. We affirm the dismissal of Nulf's claims
and the grant of costs, but reverse the award of attorney's fees to the Company.

The Company hired Nulf in 1966 as a receptionist. Her job immediately

changed to secretary-receptionist. According to a job description prepared by
Nulf on June 6, 1976, her duties consisted of opening and distributing mail,
acting as a receptionist, typing and other secretarial work, running the copy

machine, handling insurance claims and other forms, answering administrative

telephone lines, and assisting on order desk telephones.
3

Under the Company's original telephone system, customers seeking to place

orders for materials were to call an order desk number corresponding to five of
the Company's eight telephone lines. Order desk personnel were to answer the
sales calls. Customers who wished to discuss non-sales matters were to call an
administrative number corresponding to the Company's other three telephone
lines. Nulf's responsibility was to answer administrative calls and handle
overflow order desk calls. Nulf testified that in actual practice everyone
answered all eight lines.

A new telephone system was installed on November 15, 1976. Under this
system, all eight lines rang directly at the desk of the secretary-receptionist. It
was the secretary-receptionist's duty to answer all incoming calls and transfer
them to the appropriate party. Nulf objected to the new phone system, both
before and after its inception. She felt that answering the five order desk lines
was not part of her work and that it would convert her job to that of a telephone
operator. She nonetheless agreed to operate the new system for two or three
weeks.

On December 3, 1976, Nulf informed her supervisor, John Tollefson, and the
branch manager, Darrell Keller, that she would only answer the last three lines
of the new system plus overflow order desk calls. Nulf informed them she did
not like the system, she should not be forced to assume the responsibility of
answering every telephone line, she was not interested in being a telephone
operator, and she wanted the duties she had had for ten years. Keller told her
that operating the new system was part of her job.

On December 8th, after having called in sick the prior two days, Nulf again told
Tollefson and Keller that she would only answer the three administrative lines
and the overflow order desk calls. Keller then handed her a letter, drafted on
December 3rd, stating that her refusal to operate the new telephone system was
being interpreted as a resignation. Nulf twice refused the letter and left the
building. The position of secretary-receptionist was subsequently filled by a
woman.

Nulf forwarded a charge of sex discrimination to the Equal Employment

Opportunity Commission ("EEOC"). She complained about her discharge and
unspecified discriminatory terms and conditions of employment. The EEOC
investigated the matter and found no reasonable cause to believe that Title VII

of the Civil Rights Act had been violated.

8

After receiving her "Notice of Right to Sue" from the EEOC, Nulf filed suit. As
defined by the pretrial order, Nulf claimed (1) she was discriminatorily
discharged due to her sex; (2) she had performed work substantially similar to
that of the male order desk employees and was discriminatorily denied equal
pay; and (3) she was discriminatorily denied promotion to the position of office
manager.

The suit went to trial. Nulf presented three witnesses and rested her case. The
Company moved for dismissal under Fed.R.Civ.P. 41(b), and the trial court
took the motion under advisement. 1 After hearing some testimony of the first
defense witness, the court intervened and requested that Nulf's counsel crossexamine the witness. The court heard a portion of counsel's intended crossexamination, finding it necessary to admonish him several times to adhere to
matters helpful to the court. The trial judge then cut off further crossexamination stating that he had "heard all the evidence in the case that I think
necessary." Rec., vol. VII, at 198. The judge then found in favor of defendant.2
In his formal conclusions of law, the judge ruled that Nulf had failed to
establish a prima facie case for any of her claims.

10

The trial court held a later hearing on the Company's request for an award of
attorney's fees and costs. The court awarded the Company $12,158.29 in
attorney's fees and expenses and $803.03 in costs, finding that Nulf's action
"was unreasonable and groundless and was wholly without factual or legal
basis." Rec., vol. I, at 243.

11

Nulf alleges on appeal that the trial court improperly applied legal standards to
erroneous findings of fact and that it abused its discretion in (1) rulings on the
admission of evidence, (2) denying Nulf a jury trial on her equal pay claim, and
(3) awarding attorney's fees and costs to the defendant.

I.
12

In a Title VII case, the initial burden is on the employee to make a prima facie
showing of discrimination by the employer. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Only
when such a showing has been made does the burden shift to the employer to
articulate "some legitimate, nondiscriminatory reason" for the questioned
action. Id. If the employer meets this burden, the employee must show that the
stated reason is actually a pretext for prohibited discrimination. Id. at 804, 93

S.Ct. at 1825.
13

Nulf contends the district court erroneously concluded that she failed to make
out a prima facie case of discrimination for any of her claims. In support, she
cites allegedly improper factual findings and conclusions of law
"inappropriately and inaccurately applied in some or all instances to the facts in
the case at bar." Brief of Appellant at 32-33. We agree with the trial court that
Nulf's claims were subject to dismissal.

14

The factual findings of a trial court are not to be reversed on appeal unless they
are clearly erroneous. Dowell v. United States, 553 F.2d 1233, 1235 (10th Cir.
1977); Woods v. North American Rockwell, 480 F.2d 644, 646 (10th Cir.
1973). The same rule applies to conclusions involving mixed questions of fact
and law. Dowell v. United States, 553 F.2d at 1235. Under the clearly
erroneous standard, reversal is proper only when "the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has
been committed." United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct.
525, 542, 92 L.Ed. 746 (1948). Accord, Taylor v. Honeywell, Inc., 497 F.2d
1382, 1383, (10th Cir. 1974).

15

McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, sets forth
the legal standards we are to apply in deciding whether an employee has
established a prima facie case of employer discrimination:

16 may be done by showing (i) that he belongs to a racial minority; (ii) that he
"This
applied and was qualified for a job for which the employer was seeking applicants;
(iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection,
the position remained open and the employer continued to seek applicants from
persons of complainant's qualifications."
17

Id. at 802, 93 S.Ct. at 1824. McDonnell Douglas involved hiring, and the Court
recognized that "the specification ... of the prima facie proof required from
respondent is not necessarily applicable in every respect to differing factual
situations." Id. at 802 n.13, 93 S.Ct. at 1824 n.13. "But McDonnell Douglas did
make clear that a Title VII plaintiff carries the initial burden of showing actions
taken by the employer from which one can infer, if such actions remain
unexplained, that it is more likely than not that such actions were 'based on a
discriminatory criterion illegal under the Act.' " Furnco Construction Co. v.
Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)
(quoting International Brotherhood of Teamsters v. United States, 431 U.S.
344, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)).

18

After reviewing the record, we are not left with a definite and firm conviction
that the trial court was mistaken in concluding Nulf failed to carry this initial
burden regarding her three claims.

A.
The promotion claim
19

One of Nulf's claims is that she was discriminatorily denied promotion to the
position of office manager. The elements of a prima facie case set forth in
McDonnell Douglas have been applied to promotion cases. See Stastny v.
Southern Bell Telephone Co., 628 F.2d 267, 281 (4th Cir. 1980); Fitzgerald v.
Sirloin Stockade, 624 F.2d 945, 954 (10th Cir. 1980); Olson v. Philco-Ford,
531 F.2d 474, 477 (10th Cir. 1976). To meet the prima facie test, Nulf had to
show that there were promotional opportunities available that were filled by
males, that she was qualified for promotion, and that despite her qualifications
she was not promoted. This she failed to do. As the trial court found: "Ms. Nulf
adduced no evidence as to such matters as when the position became available;
whether she applied for it; (and) who received the position." Rec., vol. I, at 210.
Nulf, in fact, testified that what she wanted was her old job and the duties she
had performed for ten years. Clearly, the trial court was justified in concluding
that Nulf had not made a prima facie case of a discriminatory denial of
promotion to office manager.

20

Nulf now attempts to raise, for the first time on appeal, allegations and
evidence that she was discriminatorily denied promotion to an order desk
vacancy. This issue was never presented to the trial court. Matters not
appearing in the record will not be considered by the court of appeals. Shah v.
Halliburton Co., 627 F.2d 1055, 1057 n.2 (10th Cir. 1980); Neu v. Grant, 548
F.2d 281, 286-87 (10th Cir. 1977).

B.
The discharge claim
21

The three-step analysis of discrimination claims established in McDonnell

Douglas has repeatedly been applied to discriminatory discharge cases. See, e.
g., Lujan v. New Mexico Health and Social Services Department, 624 F.2d 968,
970 (10th Cir. 1980); Reeb v. Marshall, 626 F.2d 43, 45 (8th Cir. 1980); Ray v.
Safeway Stores, Inc., 614 F.2d 729, 730-31 (10th Cir. 1980). Nulf was required
to present a prima facie case of discriminatory discharge and to prove that any
legitimate, nondiscriminatory reason articulated for the discharge was merely a

pretext for discrimination. See Board of Trustees of Keene State College v.

Sweeney, 439 U.S. 24, 26-28, 99 S.Ct. 295, 296-297, 58 L.Ed.2d 216 (1978);
Ray v. Safeway Stores, Inc., 614 F.2d at 731.
22

Usually the complainant need not present evidence of pretext until the
defendant employer has established a legitimate, nondiscriminatory reason for
discharge. Here, however, Nulf herself articulated the justification for
termination. While presenting her case in chief, Nulf testified on both direct and
cross-examination that she told the branch manager she did not want the
telephone operator job he was demanding she perform and that he then fired
her. In fact, she testified that she would only answer three of the eight phone
lines plus overflow calls. In so doing, Nulf, herself, provided a legitimate,
nondiscriminatory rationale for her discharge: her refusal to perform her
assigned duties. See Swint v. Pullman-Standard, 539 F.2d 77, 105 (5th Cir.
1976); Ammons v. Zia Co., 448 F.2d 117, 120-21 (10th Cir. 1971). As a
prerequisite to recovery, therefore, she was required to show either that
insubordination was a pretext for the Company's real reason for firing her, that
she had been a victim of disparate treatment, or that discriminatory actions of
the Company induced her insubordination. See Sime v. Trustees of the
California State University and Colleges, 526 F.2d 1112 (9th Cir. 1975). Nulf
never made such a showing. As the trial court stated, "Ms. Nulf admitted her
insubordination, and proffered no evidence to this Court which would support a
finding that male employees who were insubordinate were not discharged.
Likewise, Ms. Nulf failed to proffer any evidence to show that her
insubordination was not the true reason for her discharge." Rec., vol. I, at 209.
Consequently, it was within the province of the trial court to dismiss her claim
of discriminatory discharge.3

23

There is no merit to the assertion that it was improper for the trial court to so
rule before allowing Nulf to present evidence on rebuttal which purportedly
would have established pretext. It became Nulf's responsibility to present this
evidence in her case in chief once she provided a legitimate reason for her own
discharge. We are in complete concurrence with the Ninth Circuit's resolution
of the same issue in Sime v. Trustees of California State University and
Colleges, 526 F.2d 1112. There, appellant Sime argued it was improper for the
trial court to rule on a Rule 41(b) motion "without first affording Plaintiff a fair
opportunity to show that the reason advanced (for failure to hire) was a pretext
for discriminatory conduct." Id. at 1113. The court held:

24
"Here,
Sime met her initial burden. Defendants also met their burden out of the
mouths of Sime's own witnesses, by cross-examining them. The burden them (sic)
moved back to Sime, and she should have undertaken to meet it before she rested.

This she did not do. She was under no compulsion to rest; it was her counsel's
decision to do so. If counsel made a mistake in resting, the argument on the Rule
41(b) motion should have alerted them."
C.
Equal pay claim
25

The trial court found that Nulf "failed to establish a prima facie case that her
work was 'substantially equal' to that of the Order Desk employees." Rec., vol.
I, at 208. It concluded that her equal pay claim was subject to dismissal. These
conclusions are not clearly erroneous.

26

In General Electric Co. v. Gilbert, 429 U.S. 125, 144, 97 S.Ct. 401, 412, 50
L.Ed.2d 343 (1976), the Supreme Court held administrative interpretations of
the Equal Pay Act, 29 U.S.C. 206(d), to be applicable to Title VII. In Lemons
v. City and County of Denver, 620 F.2d 228, 229-30 (10th Cir. 1980), we stated
that the equal pay/equal work concept applies to Title VII in the same way it
applies to section 206(d). See Gunther v. County of Washington, 602 F.2d 882,
891 (9th Cir. 1979). Thus, a differential in pay between employees is authorized
if permitted by the Equal Pay Act. Ammons v. Zia Co., 448 F.2d at 119.

27

Lemons also indicates that "equal work" is not to be construed broadly. We can
consider only those wage discrimination claims involving departures from
equal pay for equal work. 620 F.2d at 229-30. Failure to furnish equal pay for
"comparable work" or "like jobs" was held not cognizable. Id. at 229. See
Gunther v. County of Washington, 602 F.2d at 889. Jobs must be "substantially
equal" in terms of "skill," "effort," "responsibility," and "working conditions."
Ammons v. Zia Co., 448 F.2d at 120; 29 U.S.C. 206(d)(1).

28

The trial court reasonably concluded that the duties performed by Nulf were not
substantially equal to those of the order desk employees. Although Nulf
performed some duties also performed by order desk employees, she did not
perform them with the same frequency. The job description prepared by Nulf
showed her primary duties to be those of secretary-receptionist. Nulf testified
that on average she spent approximately half her time on secretarial and
receptionist duties, with the time spent on order desk tasks depending upon her
secretarial workload. Given that Nulf was spending roughly half her time on
non-order desk duties, it cannot be said that Nulf's job was substantially equal
to the order desk job. It is not sufficient that some aspects of the two jobs were
the same. "It is the overall job, not its individual segments, that must form the
basis of comparison." Gunther v. County of Washington, 602 F.2d at 887;

Usery v. Richman, 558 F.2d 1318, 1320 (8th Cir. 1977). This court has
indicated that when significant amounts of time are spent on different tasks,
equal work is not involved. See Brennan v. South Davis Community Hospitals,
538 F.2d 859, 862-63 (10th Cir. 1976).
29

We find the circumstances here analogous to those in Gunther v. County of

Washington, 602 F.2d 882. There female prison guards claimed they were
denied equal pay for equal work. In upholding a finding that prison matron and
male guard jobs were not substantially equal, the Ninth Circuit emphasized that
male guards spent more time guarding prisoners than female guards, the
matrons being assigned clerical work when there was no guarding needed to be
done. Id. at 888. The court emphasized that "(o)ften the (clerical) work
consumed as much as 50% of their working time." Id.

30

We need not examine whether the roughly 50% of the time Nulf spent on
secretarial-receptionist duties were substantially equal in skill, effort, and
responsibility to that of the order desk. Title VII does not apply to pay
disparities between different jobs. Lemons v. City and County of Denver, 620
F.2d at 229. Congress rejected the equal pay for "comparable work" concept.
Id. "It is not merely comparable skill and responsibility that Congress sought to
address, but a substantial identity of job functions." Hodgson v. Golden Isles
Convalescent Homes, Inc., 468 F.2d 1256, 1258 (5th Cir. 1972). Accord,
Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1175 (3d Cir. 1977). Such
an examination might be necessary if Nulf basically functioned as an order desk
employee and was given less responsible tasks simply to frustrate the purposes
of the Equal Pay Act. Inconsequential differences in job duties cannot be used
as a pretext for discriminatory compensation. See Usery v. Columbia
University, 568 F.2d 953, 959 (2d Cir. 1977). But Nulf was not within the order
desk job category. She was hired as a receptionist and a significant portion of
her duties involved secretarial-receptionist work. Title VII and the Equal Pay
Act simply are not applicable.

D.
Individual discrepancies in findings
31

Nulf makes numerous claims of defects and inconsistencies in individual

findings by the trial court. We hold these to be either wholly without merit or so
minor that they could not have been relevant to the outcome. The exclusion of
certain testimony from the findings is not necessarily an error. In making
findings under Fed.R.Civ.P. 41 and 52, a trial court is not a dictating machine.
Its findings do not have to contain evidence supporting every possible

viewpoint. See generally 5A Moore's Federal Practice P 52.06(1), at 2716 (2d

ed. 1980). The judge weighs the evidence and ascertains what the facts are. See
Dailey v. City of Lawton, 425 F.2d 1037, 1040 (10th Cir. 1970). Nor need the
trial court make findings as to every detail. "The Rule (Fed.R.Civ.P. 52) does
not require the making of elaborate findings extending into minute and
unnecessary detail on every feature of the case, but is met in full measure if the
findings cover in clear, definite and concise language the contested issue or
issues in the case." Featherstone v. Barash, 345 F.2d 246, 250 (10th Cir. 1965).
Accord, Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1186 (10th Cir. 1975).
Findings of fact are sufficient if they indicate the factual basis for the court's
general conclusion as to ultimate facts and are broad enough to cover all
material issues. See Otero v. Mesa County Valley School District No. 51, 568
F.2d 1312, 1316 (10th Cir. 1977).
32

Minor discrepancies such as a finding that Nulf was hired as a secretaryreceptionist rather than as a receptionist constitute harmless error. See
Fed.R.Civ.P. 61. Errors which could not have prejudiced the unsuccessful party
afford no right of reversal of the judgment. Harris v. Quinones, 507 F.2d 533,
539 (10th Cir. 1974).II.

A.
Termination of cross-examination
33

Nulf contends the trial court abused its discretion in rulings related to the
admission of evidence. She particularly objects to the restriction and then
termination of her counsel's cross-examination of the defense's first witness,
Darrell Keller, the branch manager. Nulf claims termination of cross prevented
her from impeaching Keller's testimony and from proving essential elements of
her case.

34

The scope and extent of cross-examination is a matter for the trial court. Its
ruling will not be reversed unless it is an abuse of discretion, United States v.
Heath, 580 F.2d 1011, 1026 (10th Cir. 1978), cert. denied, 439 U.S. 1075, 99
S.Ct. 850, 59 L.Ed.2d 42 (1979), which was clearly prejudicial. United States v.
Smaldone, 583 F.2d 1129, 1133 (10th Cir. 1978), cert. denied, 439 U.S. 1119,
99 S.Ct. 1029, 59 L.Ed.2d 80 (1979). We cannot say that the trial court abused
its discretion in restricting cross-examination of Keller on the three matters of
which Nulf complains.

35

Nulf claims the trial court not only restricted the scope of cross-examination by
her counsel, but cut it off altogether. The court's termination of cross-

examination is not grounds for reversal for two reasons.

36

First, no objection to the termination of cross was entered. No offer of proof

was made concerning the additional matters Nulf's counsel wanted to develop.
Nor were post-trial motions made regarding the evidence the trial court failed
to consider. We ordinarily refuse to consider errors not objected to at trial. See
Neu v. Grant, 548 F.2d 281, 287 (10th Cir. 1977). This is the course the Ninth
Circuit followed in responding to an appellant's claim that she had been unfairly
deprived of the opportunity for rebuttal by an allegedly premature grant of a
Rule 41(b) dismissal motion. See Sime, 526 F.2d 1112. The court remarked:

37 made no suggestion at any time that she had such proof, much less an offer of
"She
proof. She made no motion for a new trial under Rule 59(a), F.R.Civ.P., or for relief
from judgment under Rule 60(b). She simply appealed, and raised her claim for the
first time in her opening brief on appeal. This will not do. We do not ordinarily
reverse on grounds never presented to the trial judge, especially where, if they had
been presented, he could have cured the purported error."
38

Id. at 1114.

39

Second, we cannot label the court's action prejudicial, although we do find it

troublesome. We have detailed at some length in part I supra that Nulf was
properly subject to dismissal on all three of her claims. The trial court could
rightfully have granted the 41(b) motion at the close of plaintiff's case. That the
trial court chose to wait to so rule, taking the motion under advisement, is not
error. It is "within the discretionary power of the trial judge to either act upon
the motion immediately or to reserve his decision until later." A & N Club v.
Great American Insurance Co., 404 F.2d 100, 103 (6th Cir. 1968). See
generally 9 C. Wright & A. Miller, Federal Practice and Procedure 2371, at
222-23 (1971). Admittedly, the usual procedure is for the judge to hear the
defendant's entire case if he chooses to reserve judgment. See Duval v. Midwest
Auto City, Inc., 578 F.2d 721 (8th Cir. 1978); A & N Club v. Great American
Insurance Co., 404 F.2d 100. But we cannot see how failing to wait until that
point prejudiced plaintiff. Having failed to establish what she needed to in her
case in chief, her claims were still subject to Rule 41(b) dismissal.

40

However, we find it somewhat disturbing that the dismissal occurred in the

middle of cross-examination. Once direct examination occurs, the opposing
party is entitled to cross-examination of matters testified to on direct and
matters bearing upon the credibility of the witness. See Fed.R.Evid. 611.
Granting dismissal after direct examination of one defense witness without
allowing full cross leaves the possible inference that what was said on direct,

untested by cross, influenced that decision. The proper procedure is to allow

cross once direct examination has occurred.4 In this instance, however, the
claims could have been dismissed without any reliance upon what was said on
direct by the defense witness. In upholding the trial court's judgment in part I,
we did not rely upon the testimony of Keller. Cutting off cross-examination in
these special circumstances was at most harmless error.5 Since it did not
prejudice Nulf, it is not reversible error. See United States v. Speir, 564 F.2d
934, 938 (10th Cir. 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1495, 55
L.Ed.2d 521 (1978); United States v. Walton, 552 F.2d 1354, 1364 (10th Cir.),
cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977).
B.
Admission of EEOC findings
41

In dismissing Nulf's claims, the trial court commented that the EEOC
determinations of her charges "tell the story as the Court finds it; and the Court
finds that there is no discrimination proved in the record ...." Rec., vol. VII, at
199. Nulf contends that by admitting into evidence and considering the EEOC
findings, the court abused its discretion and deprived her of the de novo
proceeding to which she was entitled.

42

Trial courts have discretion in deciding whether to admit EEOC determinations

into evidence and refer to them in their findings. See, e. g., Blizard v. Fielding,
572 F.2d 13, 16 (1st Cir. 1978); Walton v. Eaton Corp., 563 F.2d 66, 75 & n. 12
(3d Cir. 1977). The Supreme Court has made clear that "(p)rior administrative
findings made with respect to an employment discrimination claim may, of
course, be admitted as evidence at a federal sector trial de novo." Chandler v.
Roudebush, 425 U.S. 840, 863 n. 39, 96 S.Ct. 1949, 1961 n. 39, 48 L.Ed.2d 416
(1976).

43

We find no abuse of discretion in admitting the EEOC determinations here. The

court's comment indicates only that it viewed the evidence in the same way the
EEOC did, not that it accepted the Commission's conclusion without its own
independent analysis and determination. Nulf was given full opportunity to
present her case. The formal findings of fact and conclusions of law
demonstrate that a de novo review was provided. They thoroughly examine the
evidence without a single reference to the EEOC determinations.

III.
44

One of the issues left unresolved by the pretrial order was whether Nulf had

properly raised claims under the Equal Pay Act, 29 U.S.C. 206(d). At the start
of trial, counsel for both sides sought to have motions heard by the trial court.
The court summarily overruled all motions. Nulf says she intended to move that
her complaint be amended to raise a claim under the Equal Pay Act. Nulf
further contends that if she had been allowed to amend her complaint, she
would have moved for a jury trial, as authorized by the Equal Pay Act. She
asserts the trial court's failure to grant a jury trial constituted an abuse of
discretion.
45

A trial court cannot be expected to read litigants' minds. Yet this is what Nulf is
asking us to expect of the trial court. Nulf never moved to amend her complaint
as required by Fed.R.Civ.P. 15, nor did she ever make an oral or written
demand for a jury trial as required by Fed.R.Civ.P. 38. We would be opening
Pandora's box if we accepted Nulf's claim. Any litigant would then be free to
claim after-the-fact that she had intended to do something at trial which the
court below somehow prevented.IV.

46

A court, in its discretion, may award a reasonable attorney's fee to the

prevailing party in a Title VII action. 42 U.S.C. 2000e-5(k). However, as the
Supreme Court stated in Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978), "a plaintiff should not be
assessed his opponent's attorney's fees unless a court finds that his claim was
frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate
after it clearly became so." Under this standard, we reverse the trial court's
award of attorney's fees to the Company. Without the benefit of the "hindsight
logic" district courts must resist, id. at 421, 98 S.Ct. at 700, we do not believe
all of Nulf's claims were so groundless at the outset as to merit the $12,158.29
awarded against her. The Company admitted that it did not file a pretrial motion
for summary judgment because there were factual issues in dispute which only
a trial could resolve. Nor were the claims so groundless that the trial court felt
confident enough to immediately grant the Rule 41(b) dismissal motion made
at the close of Nulf's case. When the circumstances merit it, courts have been
willing to reverse lower court awards of attorney's fees to defendants. See
Crawford v. Western Electric Co., 614 F.2d 1300, 1321 (5th Cir. 1980); EEOC
v. Fruehauf Corp., 609 F.2d 434, 436 (10th Cir. 1979); Little v. Southern
Electric Steel Co., 595 F.2d 998, 1004-06 (5th Cir. 1979). Such action is
warranted here.

47

We affirm the dismissal of Nulf's claim and award of costs to the Company but
reverse the award of attorney's fees against her.

The actual request was for a directed verdict. Because the action was tried by a
court without a jury, the motion was in effect a Rule 41(b) motion to dismiss.
Vallejos v. C. E. Glass Co., 583 F.2d 507, 509 n.2 (10th Cir. 1978)
In granting judgment for the Company, the trial court did not expressly state it
was ruling upon the Rule 41(b) motion earlier taken under advisement. From
the manner in which the court terminated the trial, we deem it evident that this
is what the court in fact did. See part II infra. Rule 41(b) provides:
"After the plaintiff, in an action tried by the court without a jury, has completed
the presentation of his evidence, the defendant, without waiving his right to
offer evidence in the event the motion is not granted, may move for a dismissal
on the ground that upon the facts and the law the plaintiff has shown no right to
relief. The court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence."

In so ruling, we are only holding that Nulf failed to meet the burden of proof
imposed upon her by the final step of the three-step analysis of McDonnell
Douglas. We need not decide whether Nulf satisfied the first step by
introducing a prima facie case. The trial court did say that Nulf failed to do so.
But the court then went on to discuss how insubordination is a legitimate basis
for discharge and how Nulf failed to offer evidence that this reason was a
pretext. Thus, we view the court as also holding that Nulf failed to carry her
overall burden of proof. In Kentroti v. Frontier Airlines, Inc., 585 F.2d 967,
969-70 (10th Cir. 1978), we faced a similar situation. There we held:
"It is true that the trial judge stated at the end of the trial that he was granting
the motion made by the defendant to dismiss for failure to establish a prima
facie case. We feel, however, that the judge's findings and conclusions as a
whole show that he considered and agreed with the company's showing of
legitimate, non-discriminatory reasons for its actions. By considering and
agreeing with such reasons outlined in the defendant's proof, we do not infer in
this instance that the court was recognizing that a prima facie case had been
made. We do not believe it critical here to determine which process of
reasoning the trial court followed rejecting the plaintiff's case because of (sic)
prima facie showing had not been made, or holding that the defendant prevailed
because the evidence demonstrated legitimate, non-discriminatory reasons for
the defendant's actions. We feel the judge was likely focusing on the latter
point and then holding that the plaintiff had failed to carry the overall burden of
proof. In any event, there was no prejudice from the procedure he followed."

We note that the trial judge did not permit the defense to finish examining its
first witness on direct either; he cut direct examination short with the statement,
"I think it's time ... to cross examine this witness." Rec., vol. VII, at 190

What most disturbs us about the trial court's conduct is that it used the
testimony of Keller in making its findings of fact and conclusions of law.
Cutting off cross because a prima facie case has not been established is one
thing, but to then use the testimony of a witness who has not been subjected to
full cross-examination is quite another. It is only because Nulf's claims were
subject to Rule 41(b) dismissal that we hold this clearly improper judicial
conduct harmless error